Brexit: The Devolution Dimension

Jo Murkens

The results of the third nation-wide referendum in the United Kingdom are still sinking in at home and around the world. Just below 52% voted to leave the European Union, just over 48% voted to remain. The widespread conclusion is that the UK must leave the EU.

But there is another way of reading the result. The United Kingdom is not a centralised state. It is a ‘family of nations’. There is a strong case for arguing that the referendum carries only if a majority of voters in all four nations respectively give their backing. England and Wales voted to leave, but Scotland and Northern Ireland voted to remain. Recognising that split is not a matter of shifting the goalposts after the fact. It is about respecting an established, indeed a compelling constitutional order.

Before Westminster politicians think about the practicalities of withdrawing from the EU, they urgently need to address the constitutional consequences. What is the overriding objective? To give legal effect to the will of the UK electorate as expressed in an advisory referendum? Or to preserve the United Kingdom, which is split 2:2?

The strongest case against EU withdrawal is that it is not in the UK’s interest. On that view, an overriding state interest is invoked not to disregard the will of the people, but to recognise that the result divides the constituent parts of the United Kingdom. Abrogation of the Scottish and Northern Irish results would violate the principle of formal co-equality among the four British nations. That stance almost eagerly invites Irish republicans to re-unify Ireland and Scottish nationalists to launch a second independence referendum.

Of course, if the overriding objective is to give legal effect to the overall numerical tally and withdraw from the EU, then the Westminster Parliament must first overcome several obstacles before it can dedicate itself completely to the Brexit negotiations. It must repeal the European Communities Act 1972 by which it became a member state. It must also amend the devolution legislation for Scotland and Northern Ireland. EU law is incorporated directly into the devolution statutes in Scotland, Wales and Northern Ireland. Section 29(2)(d) of the Scotland Act 1998, for example, provides that acts of the Scottish Parliament that are incompatible with EU law are ‘not law’. A similar provision, section 6(2)(d), appears in the Northern Ireland Act 1998. Indeed, the status of the UK and Ireland as EU member states and signatories to the European Convention on Human Rights was fundamental to the negotiation of the Belfast or ‘Good Friday’ Agreement.

Amending the devolution legislation would be technically easy, but politically hazardous. It would add fuel to the fire stoked up by Scottish demands for independence. It would place ‘a bomb under the Irish peace process’. If Westminster is serious about Brexit it will have to terminate the devolution settlement it has so carefully crafted since before 1997. There is no way for Westminster to avoid negotiating with Edinburgh, Cardiff and Belfast in addition to Brussels, and there is no way for the UK as a whole to survive this process intact.

The integration of the devolved nations within the UK’s constitutional framework means that their consent needs to be sought. The 62% of voters in Scotland, and the 55.8% in Northern Ireland, who voted to remain EU members have turned their nations into veto powers. If either declines, the UK as a whole cannot proceed with Brexit negotiations in any constitutionally plausible way.

The United Kingdom is no longer a centralised state, if it ever was. The devolution arrangements have changed the UK’s constitutional settlement. The old Westminster axis of power has become diffuse through power-sharing agreements with Edinburgh, Cardiff, and Belfast. People who voted Leave may ‘want their country back’, but their country has transformed over the last twenty years.

Under the current arrangements it would be perfectly possible for the family of four nations, acting collectively, to withdraw from the European Union. However, in the absence of unanimity and with awareness of a very delicate situation in Scotland and Northern Ireland, the next Prime Minister and the Westminster Parliament should not divert all political resources to make this purely advisory referendum legally binding. They must channel all resources to keep the Kingdom whole.

Jo Eric Khushal Murkens is an Associate Professor at the Department of Law of the London School of Economics and Political Science (LSE).

(Suggested citation: J. Murkens, ‘Brexit: The Devolution Dimension’, U.K. Const. L. Blog (28th Jun 2016) (available at https://ukconstitutionallaw.org/))

This piece was originally published on the UK Constitutional Law Association website and is republished here with kind permission.

England’s Difficulty; Scotland’s Opportunity

Aidan O’Neill QC (Scot)

The result of Brexit referendum has revealed certain difficult truths about our nation.    England is an unhappy country.  The vote shows that the English are politically riven in terms of class, educational level, age, and (non-) metropolitan status.  It has revealed what was for so long obvious; that London is not in, or of, England.  It is an international(ist) city- state whose politics and economy and outlook are wholly different from the nation whose capital it nominally is.   And Scotland is another country; they do things differently there.

One thing is clear, however:  the result of the referendum has to be respected and acted upon by all our politicians.    That is what living in a democracy means.    So let us end this talk of a second Brexit referendum, or these calls on our MPs to refuse to implement the will of the people on the Brechtian grounds (in his poem Die Lösung) that “the people has forfeited the confidence of the government”.

Brecht’s poem concludes “ would it not be easier in that case for the government to dissolve the people and elect another?”.     But it seems to me that the result of the Brexit referendum has done exactly that.     It has revealed that there is not one demos, one people, within the United Kingdom.  There are instead peoples, demoi.  The British people has been dissolved.

The referendum has revealed radically different visions about our European future and place in the world between Scotland (and Northern Ireland) on the one hand, and England and Wales (excluding London) on the other.   Respecting democracy on this basis means respecting the decision of the people of England and Wales no longer to be citizens of a member State of the European Union.   Equally, however, respect for democracy means honouring the expressed wish of the people of Scotland (and Northern Ireland) to remain as full participant citizens in the supranational polity that is the EU.

So rather than arguing over when and how Article 50 TEU might be activated and by whom, or whether the two year clock ticking for exit can be stopped once started, we need as responsible citizens in a democracy to face up in good faith to what many of us regard as an appalling result, and coalesce around pressing for the quickest possible conclusion of the least worst option which still respects the actual referendum result.

The Brexit referendum has given no mandate or guidance as to what our future relationship might be with Europe.  The best and cleanest way to respect the referendum result (both in the fact that a majority voted to leave the EU but that a large minority voted for no change) would be to seek the minimum possible change compatible with the UK no longer being a Member State.  This minimal change means, in my view, joining Norway, Iceland and Liechtenstein in the European Economic Area (EEA).   The EEA Agreement was concluded in 1993 and looks remarkably like the Treaty of Rome prior to its amendment by the 1992 Maastricht Treaty, which first brought Tory Euro-scepticism to the fore.  Article 1 EEA states

  1. The aim of this Agreement of association is to promote a continuous and balanced strengthening of trade and economic relations between the Contracting Parties with equal conditions of competition, and the respect of the same rules, with a view to creating a homogeneous European Economic Area, hereinafter referred to as the EEA.
  2. In order to attain the objectives set out in paragraph 1, the association shall entail, in accordance with the provisions of this Agreement :

(a) the free movement of goods;

(b) the free movement of persons;

(c) the free movement of services;

(d) the free movement of capital;

(e) the setting up of a system ensuring that competition is not distorted and that the rules thereon are equally respected; as well as

(f) closer cooperation in other fields, such as research and development, the environment, education and social policy.

The case law of the Court of Justice on those provisions of the EU Treaties and secondary EU legislation which are “identical in substance to corresponding rules” of the EEA Agreement are binding, but only up until the date of the signature of the original EEA Agreement: Article 6 EEA.   What this means is that the acquis communautaire of the Court of Justice prior to the development of EU citizenship rights binds, but that the CJEU has no general continuing jurisdiction in relation to the interpretation of the EEA Agreement.

The EEA States have their own institutions to police the EEA Agreement: instead of the Commission there is the EFTA Surveillance Authority; instead of the CJEU there is the EFTA Court; and there is no role for the European Parliament.   There is provision for inter-governmental co-operation with the EU in the form of the EEA Council (which consists of the members of the EU Council and members of the European Commission, and of one member of the Government of each of the EEA States) and the EEA Joint Committee (which consist of representatives of the Contracting Parties and which take decisions by agreement between the EU, on the one hand, and the EEA States “speaking with one voice” on the other”).

England’s current difficulty is that it has no leader, a fundamentally divided populace and no mandate as to what any future relationship might be sought from the EU.   Given that membership of the EEA guarantees free movement of workers and the self-employed it might be thought to go against the anti-migration sentiments which appeared to have fuelled much of the vote in favour Brexit south of the Border.

Scotland, however, has a First Minister who is undoubtedly in charge of her party, a population which was remarkably united in the referendum, and a clear mandate from the referendum to the effect that Scotland wants to stay in the EU.

In the next three months or so while the Tory party seeks a new leader and England goes into meltdown in trying to gauge what so ailed the country, Nicola Sturgeon has an opportunity now to forge strong positive links across Europe and among the big players within the EU institutions to push the idea that what has happened is not that the UK as a whole has voted to leave the EU but that England and Wales voted to secede from the Union (both British and European) leaving Scotland (possibly in confederation with Northern Ireland) as the faithful remnant ready and able to maintain their EU membership which needs only to be slightly re-jigged, but not fundamentally altered, to take account of England’s and Wales’ secessions.

Ultimately, if Scotland does persuade the rest of the EU round on this, and Nicola Sturgeon can negotiate a package in principle for Scotland (whether or not with Northern Ireland) being regarded as the continuing UK for EU law purposes, then she can present this package to the Scottish people to be voted on in the second Scottish Independence Referendum (the Scotland Act 1998 would have to be amended by Westminster to allow this to take place lawfully, rather than by UDI).    If she wins that referendum, Scotland gets a soft transition involving ending the British Union but maintaining the European Union, while England is left to wrestle its nationalist demons unencumbered by its northern Celtic fringe of which it knew increasingly little and cared ever less.

Interestingly Article 121(a) EEA states that

The provisions of this Agreement shall not preclude cooperation :  (a) within the framework of the Nordic cooperation to the extent that such cooperation does not impair the good functioning of this Agreement.

The Helsinki Treaty of 1962 states in its preamble that “the Governments of Denmark, Finland, Iceland, Norway and Sweden, desir[e] to promote and strengthen the close ties existing between the Nordic peoples in matters of culture, and of legal and social philosophy, and to extend the scale of co-operation between the Nordic countries; [and] desir[e] to attain uniformity of regulation throughout the Nordic countries in as many respects as possible.”  Its terms were most recently updated at 1995 and now contain the following provisions, among others, on Nordic co-operation:

Article 1

The High Contracting Parties shall endeavour to maintain and develop further co-operation between the Nordic countries in the legal, cultural, social and  economic fields, as well as in those of transport and communications and environmental protection.  The High Contracting Parties should hold joint consultations on matters of common interest which are dealt with by European and other international organisations and conferences.

Legal Co-operation

Article 2

In the drafting of laws and regulations in any of the Nordic countries, citizens of all the other Nordic countries shall be treated equally with the citizens of the aforementioned country. This shall apply within all those areas falling within the jurisdiction of the Treaty of Co-operation.

Exceptions to the first paragraph may, however, be made if a requirement of citizenship is constitutionally stipulated, or is necessary because of other international obligations or is otherwise deemed necessary for particular reasons.

Article 3

The High Contracting Parties shall endeavour to facilitate the acquisition by citizens of one Nordic country of citizenship in another Nordic country.

Article 4

The High Contracting Parties shall continue their co-operation in the field of law with the aim of attaining the greatest possible uniformity in the field of private law.

Article 5

The High Contracting Parties should seek to establish uniform rules relating to criminal offences and the penalties for such offences.

With regard to criminal offences committed in one of the Nordic countries, it shall, as far as circumstances allow, be possible to investigate and prosecute the offence in another Nordic country.

Article 6

The High Contracting Parties shall seek to achieve a co-ordination of legislation in such areas, other than the aforementioned, as are considered appropriate.

Article 7

Each High Contracting Party should endeavour to ensure the implementation of regulations to allow decisions by a court of law or other public authority in another Nordic country to be executed also in the territory of the said Party.

If England and Wales were to join the EEA but Scotland (and possibly also Northern Ireland) were to remain within the EU, the Nordic co-operation agreement could also provide a useful template for a co-operation agreement to determine future relations between the now independent countries of the former British Isles (or the Anglo-Celtic Archipelago (ACA), as it might usefully henceforth be termed given the need for Ireland’s full participation within it).  On this model, the analogue to Norway within the ACA is England and Wales; Northern Ireland may be seen to be a parallel Iceland; Scotland would map on to Sweden, and the Republic of Ireland to Finland.

This then becomes a positive story from an EU perspective, showing that the Brexit vote result was not because there are fundamental problems with the EU, but because there are fundamental problems with England which may be summed up as “England has a problem with London, and London a problem with England”.   But the Brexit referendum results are respected, with England and Wales joining the EEA and Scotland and Northern Ireland staying within the EU.

Ultimately it could well be in England’s interest to have Scotland remain in the EU to argue by proxy its case and protect our common island interests from within the EU.    The fundamental change in relationship between Scotland and England – which might also  involve Scotland gaining a veto on any future free trade/investment treaties (“mixed agreements”) concluded between the EU and non-EU countries  such as the prospective new independent state of England and Wales- might be good for us all.

Conrad Russell once observed that the fundamental problem with the Treaty of Union was that England would brook no equal and Scotland no superior.   If Scotland stays in the EU then, like, Ireland it might begin to grow up and de-infantilise and lose its readiness to play the exploited victim.  And England will at last, guilt free, get to be England. The English will truly get their country back, whatever that might turn out to be.

The Quest for EU Reform after Brexit: Changes to the Role and Doctrines of the European Court of Justice

juropean-justiceProf. Peter Lindseth

“What if…?” These kinds of questions may now seem pointless in the aftermath of the victory of Leave in the EU Referendum. Instead we hear ‘What’s done is done’, ‘Leave means Leave’, ‘out is out’, etc., etc., etc.

But one question has always nagged at me ever since David Cameron brought his renegotiation deal back to the UK in February: What if it included a serious commitment to alter the role and doctrines of the European Court of Justice? Would that have tipped the balance toward the Remain side? Would we have been talking instead about a 52-48 victory for Remain? Would serious ECJ reform, both institutionally and doctrinally, have been enough to peel off the likes of Boris Johnson from the Leave camp, harnessing his energies for Remain and reform?

We will never know. But the question is still of interest, if for no other reason than the remaining Member States must now seriously consider a range of EU reforms in order to prevent further contagion of the Brexit virus. As former German Constitutional Court Judge Gertrude Lübbe-Wolff said in an interview on Verfassungsblog, ‘the shock over what has happened, and the fear of further disintegration, might produce an awakening effect. So I try to remain optimistic’. This post is in that spirit.

Continue reading

Post-Referendum Reaction – The UK Votes to Leave

Dr Iyiola Solanke

I find it hard to find anything positive to say. For me, the reason for the referendum was absurd – it is already clear that it came into being because of an internal division between members of the Conservative Party. Also, the level of the debate is embarrassing – over the last few weeks I have often wondered if I am in a national playground rather than engaged in a discussion on the future of the United Kingdom.

We voted to leave. Brexit can be seen as the consequence of decades of our leaders first, ignoring the desires of the British public and second, the deliberate miseducation of the British public.

The British public have been treated like children by political leaders for decades. The popular voice has recently been raised and ignored on a range of issues from the decision to go to war in Iraq to fees for university education. This is the backdrop to the rejection of expertise across the political spectrum – why listen to ‘them’ if they do not listen to us? The referendum is a chance to force leaders of all political stripes to listen and the chance to make a difference – even if it is a difference that will be to long term disadvantage. The temptation to do the opposite of what the ‘experts’ who called the referendum want is understandably seductive. Citizens can finally ‘take control’ not only from Brussels but also from Westminster – even if so doing will be, as the saying goes, cutting off your own nose to spite your face.

Then there is the shameful failure to educate the public on the vagaries (and yes, there are many) of the EU. This task has been left to daily newspapers yet none have taken it seriously. Worse still, one newspaper (that shall remain nameless) has done its best to mislead by regularly confusing the European Union with the Council of Europe, and the Court of Justice in Luxembourg with the European Court of Human Rights in Strasbourg.  Thus the referendum debate has sown as much confusion as clarification on the EU, making voters giddy with (dis-) information overload and inducing a decision to leave simply to be rid of the source of the headache, even if it is also the source of valuable public goods from reduced mobile roaming rates to essential protections at work.

So I for one am not surprised to wake up on June 24th to discover a majority voted to leave the EU. Those who voted to do so might be surprised, however, at some of the things that will remain the same. I list five below:

  1. The UK will still be obliged to respect the rights set out in the European Convention on Human Rights (ECHR) and comply with the rulings of the European Court of Human Rights in Strasbourg, as the Convention and the Court belong to the Council of Europe, an international organisation created in 1941 which pre-dates the EEC/ EU and the Court of Justice of the European Union (CJEU) in Luxembourg.
  2. Migrant workers, asylum seekers and refugees from former colonised and war-torn countries will still seek to re-locate to the UK by lawful or unlawful means. If France no longer feels obliged to co-operate with UK border controls as it has been doing, more desperate people may drown in the Channel. The level of immigration may therefore drop slightly and the number of deaths may increase significantly.
  3. British citizens and businesses will still experience the disappearance of jobs in the face of globalisation and the technological revolution. The more we bank, buy goods and holidays online, send electronic cards, use our Kindles and iPads, the faster the demise of our high streets and rural economies. Those who thus far have been unable to reap the benefits of membership of EU, one of the richest polities in the world, will continue to find it hard to do so after June 23rd.
  4. Home students will continue to pay high fees to study at UK Universities as these are set in Westminster not Brussels. International students enrolled to study in the UK will also still stay pay higher fees than home students for the same reason. International students may even face a fee increase if students stop coming from the EU and institutions seek to recoup the income lost by this.
  5. The British summer will still bring more rain than sun.

The world needs to note that 48% of the UK voted to remain so this is by no means a landslide victory for Brexit. David Cameron has resigned and will leave by the end of September. BMEs in the UK will now have to make sure our voice is heard in the re-negotiations. If I were a Brexiter, I would be planning how to explain that my vote brought the UK to political disintegration and international marginalisation.

Meanwhile, in Germany…the OMT ruling of the German Constitutional Court

BVerfGProf Peter Lindseth

This post originally appeared in virtually the same form on the europaeus blog.  Reproduced with kind permission.

With the EU referendum taking place today, it will be easy to overlook the OMT judgment from the German Federal Constitutional Court two days ago (English press release here, full German judgment here).  The conventional wisdom is that the decision is the usual “yes, but…” effort.  There’s some element of truth in that, but it also misses some important dimensions of ruling that will no doubt occupy commentators on Germany’s legal relationship with the EU for some time.  I’m still absorbing the judgment and also awaiting an English translation.  But in the interim, I thought I’d pass on my tweets from yesterday that tried to identify several key paragraphs worthy of deeper analysis. Continue reading

Countdown to the Referendum: Remaining and reforming the EU by Rhodri Thompson QC

‘Countdown to the Referendum’ is a series of free downloadable articles by Matrix that will explore a number of legal topics surrounding the UK referendum on 23 June 2016. In this series the articles have covered a number of topics which are all available here. Authors include Nick Armstrong, Claire Darwin, Sir Paul Jenkins QC (Hon), Gavin Millar QC, Aidan O’Neill QC, Nick Randall QC, Mark Summers QC, Rhodri Thompson QC, Professor Takis Tridimas and Angeline Welsh.

In our final article in this series before the vote tomorrow, Rhodri Thompson QC provides his final thoughts on how this referendum campaign has developed and the future for reform of the EU if we remain. He gives a summary of ten good reasons to stay, and five bad reasons to leave the EU. To download this article, please see here.

We hope you have enjoyed this series. If you would like to get in touch with your feedback, please email rsvp@matrixlaw.co.uk.

Countdown to the Referendum: Brexit and the WTO Agreement by Dr Erik Lagerlof

‘Countdown to the Referendum’ is a series of free downloadable articles by Matrix that will explore a number of legal topics surrounding the UK referendum on 23 June 2016. In this series the articles have covered a number of topics which are all available here. Authors include Nick Armstrong, Claire Darwin, Sir Paul Jenkins QC (Hon), Gavin Millar QC, Aidan O’Neill QC, Nick Randall QC, Mark Summers QC, Rhodri Thompson QC, Professor Takis Tridimas and Angeline Welsh.

In a guest post for the Matrix referendum series, Dr Erik Lagerlof asks whether the UK would be able to rely on the WTO agreement if it were to leave the EU. He argues that the UK as a joint contracting party alongside the EU and the other Member States will not continue to benefit from the WTO agreement if it decides to leave the EU. To download this article, please see here.

Dr Erik Lagerlof is a senior associate at the Swedish law firm Vinge.

We hope you enjoy this series. If you would like to get in touch with your feedback or to add someone to the mailing list, please email rsvp@matrixlaw.co.uk.

Countdown to the Referendum: Brexit and Premier League Transfers by Nicholas Randall QC

‘Countdown to the Referendum’ is a series of free downloadable articles by Matrix that will explore a number of legal topics surrounding the UK referendum on 23 June 2016. In this series the articles have covered a number of topics which are all available here. Authors include Nick Armstrong, Claire Darwin,Sir Paul Jenkins QC (Hon), Gavin Millar QC, Aidan O’Neill QC, Nick Randall QC, Mark Summers QC,Rhodri Thompson QC, Professor Takis Tridimas and Angeline Welsh.

This week, Nick Randall QC considers the consequences of a Brexit vote on the ability of Premier League clubs to sign overseas talent. To download this article, please see here. 

We hope you enjoy this series. If you would like to get in touch with your feedback or to add someone to the mailing list, please email rsvp@matrixlaw.co.uk.

Countdown to the Referendum:The Impact of Brexit on UK Security by Mark Summers QC and Angeline Welsh

‘Countdown to the Referendum’ is a series of free downloadable articles by Matrix that will explore a number of legal topics surrounding the UK referendum on 23 June 2016. In this series articles have covered a number of topics which are all available here. Authors include Nick Armstrong, Claire Darwin,Sir Paul Jenkins QC (Hon), Gavin Millar QC, Aidan O’Neill QC, Nick Randall QC, Mark Summers QC,Rhodri Thompson QC, Professor Takis Tridimas and Angeline Welsh.

This week, Mark Summers QC and Angeline Welsh discuss what a British exit from the EU would mean for the internal and external security of the UK. Their analysis considers the effectiveness of EU defence policy and intelligence-sharing arrangements, and highlights the problems for continued police and criminal co-operation that would flow from leaving the EU. This article is available to download here.

We hope you enjoy this series. If you would like to get in touch with your feedback or to add someone to the mailing list, please email rsvp@matrixlaw.co.uk.

Countdown to the Referendum: Scotland and Brexit by Aidan O’Neill QC (Scot)

‘Countdown to the Referendum’ is a series of free downloadable articles by Matrix that will explore a number of legal topics surrounding the UK referendum on 23 June 2016. In this series articles have covered a number of topics which are all available here. Authors include Nick Armstrong, Claire Darwin,Sir Paul Jenkins QC (Hon), Gavin Millar QC, Aidan O’Neill QC, Nick Randall QC, Mark Summers QC,Rhodri Thompson QC, Professor Takis Tridimas and Angeline Welsh.

This week, Aidan O’Neill QC (Scot) considers the wisdom and effectiveness of referendums being used to decide on complex constitutional questions. He considers the impact on the UK, and in particular on Scotland’s relationship with England and vice versa, if Scotland votes to remain in the EU, but England decides to leave. This article can be downloaded here.

We hope you enjoy this series. If you would like to get in touch with your feedback or to add someone to the mailing list, please email rsvp@matrixlaw.co.uk.